Blind justice: Are juryless trials the way to deliver better outcomes for rape complainers?

The most surprising thing about the row over juryless rape trials is that the Scottish Government apparently didn’t see it coming. It is, after all, just three years since a similar plan was shelved almost as soon as it was floated. Covid had shut the courts and, with cases starting to pile up, then justice secretary Humza Yousaf suggested that bench trials could be used to clear the backlog.

The backlash was immediate, vociferous and all-but unanimous, and an alternative solution – cinema justice – was found. The original plan, Yousaf said at the time, was not something he was willing to force onto the legal profession.

The suggestion this time is a little bit different – as part of the recently lodged Victims, Witnesses, and Justice Reform (Scotland) Bill, the government wants to run a pilot of juryless trials for rape cases only – but the reaction has been the same. Defence lawyers across the country are up in arms and have vowed to boycott the scheme while retired judges Lord Uist and Lord Hope – the first deputy president of the UK Supreme Court – have respectively branded the proposal “constitutionally repugnant” and a threat to the independence of the judiciary.

(Notably, in their response to the consultation on the bill the Scottish judiciary was so divided on the issue that it had to supply two sets of answers to the section dealing with juryless trials. In the first – thought to have been completed on behalf of Scotland’s two most senior judges, Lord Carloway and Lady Dorrian – the judges said they “strongly disagreed that the existing procedure of trial by jury continues to be suitable for the prosecution of serious sexual offences”. In the second, understood to represent the views of all other judges, they strongly agreed that the existing procedure is suitable. “Removing trial by jury at this stage goes too far, too fast,” those judges said.)Lord Justice Clerk Lady Dorrian suggested the juryless rape trials pilot as part of a wide-ranging review of how sexual offences cases are dealt with

First mooted by Dorrian in a 2021 report, the aim of the pilot is to improve the way complainers in rape cases experience the Scottish court system. Much of the focus is on increasing conviction rates, which averaged 47 per cent over the 10 years to 2020-21 compared with close to 90 per cent for all other crimes. Justice secretary Angela Constance says there is “overwhelming evidence” that the rate is low because juries are influenced by rape myths – they acquit because their prejudices lead them to disbelieve complainer evidence. The defence is known to play up to that during cross-examination – former Faculty of Advocates dean Gordon Jackson KC was even recorded saying he would “put a smell” on a complainer in the sexual offences case against Alex Salmond (the former first minister was cleared of all charges) – and complainers say that that exacerbates an already distressing situation. The pilot is expected to test whether dispensing with juries would lead to better outcomes.

In an interview with Holyrood earlier this year former Lord Advocate Elish Angiolini, the first woman to hold the role and the first lord advocate to review how sexual cases are prosecuted, noted how rape myths became baked into society and how they have been difficult to shift.

“If you look at the old law around rape and the absence of consent, how that was understood was that a person would be upset and distressed and running down the road,” she said. “That concept comes from the medieval sense of distress as a duty – before there were police forces there was the duty to raise the alarm. But with things like domestic abuse there’s a very different dynamic – shame and blame are at work – and if its intrafamilial the consequences of disclosing are high. That’s an understanding that only became more evident over the course of my career.”

The research cited by Constance suggests that old understandings die hard. Commissioned by the government and carried out by academics at the University of Glasgow, the Mock Jury Study was designed to examine how juries would deal with sexual offences cases if they did not have the not-proven verdict at their disposal. In a real-life situation what is said in a jury room can never be disclosed but, as the study meant the researchers also had transcripts of the deliberations for every simulated case – 32 dealing with sexual offences and 32 dealing with rape – they were able to analyse those too. The study found “considerable evidence of the expression of problematic attitudes towards rape complainers”.

“We were looking at the extent to which jurors claimed that if there was a lack of physical injury that was consent, if they didn’t call for help that was consent,” says Professor James Chalmers, co-director of research at the university’s School of Law. “We were looking for how often those came up and how often they were challenged. Most of the time when those views came up they were challenged by another juror, but we have no idea if that changed their mind or if that influenced other jurors.”

Though the government is relying heavily on the Glasgow research, a study conducted by Professor Cheryl Thomas of University College London found the opposite to be true. Having surveyed actual jurors on their attitudes as they were leaving court, Thomas concluded that “previous claims of widespread ‘juror bias’ in sexual offences cases are not valid”, although as she questioned all jurors rather than just those assigned to sexual offences cases her findings are seen as problematic. 

At the same time, there is some evidence from Sweden – where juryless trials are the norm – and New Zealand – where a juryless trial pilot has been done – that the complainer’s court experience is not substantially improved by the absence of a jury. For her book Flickan Och Skulden (The Girl And The Guilt), Swedish journalist Katarina Wennstam reviewed documents from numerous rape cases and “time and again found prejudicial formulations” that fed into rape myths around what the complainer was wearing, whether she was drunk and how many sexual partners she’d had. In New Zealand, Elisabeth McDonald, adjunct professor at Christchurch’s University of Canterbury, was given unprecedented access to the full audio of a number of trials and, while her research found that judges sitting alone were more likely to convict, from the complainer’s point of view the trial experience in terms of questioning was actually worse.

“What I ended up concluding was that on the one thing that advocates of juryless trials say will be much easier for the complainant [cross-examination], it’s worse,” she says. “The reason is that the jury is not in the room so there’s a feeling that it doesn’t matter if terrible questions are asked because the judge will just ignore them. Judges could run a really tight ship [and prevent the questions from being asked at all] but currently they’re not.”

That said, McDonald, who stresses that her sample size was small and so not statistically sound, says running cases without a jury did lead to shorter trial times and that a real advantage was the written reasoning judges are required to provide. “In one case where there wasn’t a conviction the judge said they believed that she didn’t consent but they couldn’t say beyond reasonable doubt that he [the accused] didn’t believe she hadn’t,” she says. “It showed they believed her.” Still, she adds, there were instances of judges taking many months to provide both their verdict and their reasoning, a wait that would never occur in a jury case.

While it can hardly be described as overwhelming in either direction, in a sense the research is moot. Defence lawyers were never going to be easily convinced that dispensing with juries is a good idea: playing to the jury is part of a defender’s job; acting as a buffer between citizen and state is a jury’s. But after more than a decade in which defence lawyers’ pleas to overhaul the legal aid system have gone largely unheeded, when resources have been found to improve the prosecution of sexual crimes but not to fund the defence, when lawyers have had Covid-era bank holiday courts foisted upon them without any consultation, and when defence counsel feel they have been consistently locked out of contributing to decisions that impact on the profession as a whole, there is now next to no chance of them accepting the pilot plan with any degree of equanimity.

Advocate Tony Lenehan, president of the Scottish Criminal Bar Association, says the feeling among criminal defenders is that “in general there’s not much better than contempt in the regard given to the defence side, solicitors and advocates”. “I don’t see any real appreciation for the importance of the work that’s done,” he adds. “There isn’t much more than lip-service paid to the presumption of innocence and if I’m right about that then it’s easy for people to be contemptible about the job that you do.” As far as defence solicitors go, Julia McPartlin, president of the Scottish Solicitors Bar Association, says “no one has got a lot of faith in this government to have the best interests of justice at heart”.

Justice secretary Angela Constance remains committed to running the pilot

Despite the backlash, Constance says she remains committed to the pilot and, boycotts aside, there is probably little to stop it going ahead. Solicitors from the Public Defence Solicitors Office, who are directly employed by the state to represent lawyer-less defendants whose cases are funded by legal aid, will have no choice but to act. The cab-rank rule, which requires advocates to accept instructions regardless of who they are from or what the case involves, means they will likewise be unable to refuse. “If they insist upon it in the face of all this there is a way of making it happen,” Lenehan says. “It might choke me to do it, but I signed up to be an advocate and the cab-rank rule is an important part of why the independent bar has the standing it does.”

It hardly makes for a robust pilot, though, if the only cases going through it are those with defendants who cannot afford their own lawyers and with counsel who are there under sufferance. And that’s before any of the other parameters of the pilot have been set. What, for instance, will be the government’s measure of success? If it is, as assumed, to manipulate the conviction rate, how will judges who acquit be judged? Will they, as Lord Hope has suggested, be removed from office, something he says is “quite contrary to the basic principle of the independence of the judiciary”? What will happen to those convicted under the pilot if it is deemed to be a failure? Will their cases be reheard? How would that fit within a system which has a presumption against retraumatising complainers? Even without the objections, the pilot was always going to be difficult to construct.

Just because it is tricky doesn’t necessarily mean it is a bad idea, though. As Lady Dorrian wrote in her report, “the fact that a system has been sanctified by usage may make it difficult to change, but it should not make it exempt from thorough examination of its suitability”. It is clear from the studies that do exist that there is a case to be made for judge-only rape trials; the fact the research is so scant only makes the case for thoroughly examining the proposition stronger. Lady Dorrian made a number of suggestions for reform, including educating juries on rape myths and having judges better guide them in their decision-making. Only the plan for judge-alone trials can test whether justice is better served in the absence of a jury, though. If that cannot be tested it will be a failure of the government’s own making.

The criminal justice sector is made up of many parts, with the defence as integral to its proper operation as the prosecution and the bench. Juryless trials were never going to be an easy sell to those on the defence side; the fact that lawyers in that part of the profession have felt so ignored for so long on so many different issues has made it all-but impossible. Writing in The Guardian last week, former First Minister Nicola Sturgeon made the eye-catching admission that it is only since relinquishing office that she has become aware of how polarised and toxic Scottish public debate is. The reaction to the judge-only rape trials suggestion is, she wrote, a “case in point”. 

Though she was seemingly trying to bring calm to the situation, what Sturgeon actually did was expose the deafness that lay at the heart of her government. It is a deafness that led to the botched handling of what should have been landmark gender reforms and the ongoing failure to get an environmentally sound deposit return scheme up and running. And it is a deafness that has not only continued into the current administration but which could ultimately harm the very people the justice reform bill has set out to protect. As Lady Dorrian wrote in her report: “Many of the concerns expressed by complainers precisely echo the concerns which were being expressed 20 and even 40 years ago […] Without profound reform there is a real possibility that our successors will be examining the same issues 40 years hence.”